Institute for Justice Seeks Review of School Choice Case By Full Sixth Circuit

John Kramer
John Kramer · December 28, 2000

Washington, D.C.-The Institute for Justice announced this morning that it has asked the full U.S. Court of Appeals for the Sixth Circuit to rule on the constitutionality of the Cleveland Scholarship Program. Earlier this month, a three-judge panel of the Sixth Circuit struck down the program by a 2-1 vote, concluding that it violated the First Amendment’s establishment clause. This decision conflicts with an earlier ruling of the Ohio Supreme Court upholding the constitutionality of the program on First Amendment grounds.

“If the divided panel’s decision is allowed to stand, almost 4,000 low-income Cleveland children will be forced to leave the high-quality schools they are currently attending and instead return to the failed Cleveland public schools,” commented Clint Bolick, the Institute’s vice president and litigation director. “We therefore believe it is imperative for the entire Sixth Circuit to resolve the conflict between the Ohio Supreme Court and the three-judge panel on this important issue.”

In its petition, the Institute pointed out the numerous factual and legal errors contained in the panel’s opinion. For instance, while the panel’s majority complained that the program provided an incentive for parents to choose religious schools over nonreligious schools because most schools participating in the program are religious, it ignored the evidence of all the other nonreligious options available to Cleveland parents at no cost, such as magnet schools and charter schools. When these schools are taken into account, only 16.5 percent of Cleveland students participating in choice programs are enrolled in religious schools.

If the entire Sixth Circuit agrees to hear the case en banc, 13 judges will evaluate the constitutionality of the program. If the court declines to reconsider the panel’s ruling, the Institute has promised to seek U.S. Supreme Court review. Bolick explained, “We will pursue every legal avenue available to keep the program alive. The panel’s ruling is inconsistent with U.S. Supreme Court precedent, and we are confident that it will be overturned one way or another.”

The Institute represents five Cleveland families currently participating in the scholarship program. The Institute is also currently defending the constitutionality of school choice programs in Florida, Illinois, and Arizona.